Now on to more substantive discussion:
First, the decision (pdf).
Next, a tight analysis at Leonard Link. Key issue:
"The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics," wrote George. "It is important both analytically and from the standpoint of fairness to plaintiffs’ argument that we recognize they are not seeking to create a new constitutional right - the right to ‘same-sex marriage’ - or to change, modify, or (as some have suggested) ‘deinstitutionalize’ the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits - accompanied by the same mutual responsibilities and obligations - as this constitutional right affords to opposite-sex couples."
I am reminded of nothing so much as Antonin Scalia’s repeated insistence that the Constitution does not grant the right to gay sex in reference to Lawrence and Garner vs Texas. Of course not – for starters, the Constitution does not grant rights – it confirms them. Hey, Tony – ever hear that little thing about “all men are endowed by their creator with certain inalienable rights”? What do you think that means?
Second, the Constitution neither grants nor confirms anyone’s right to have sex of any kind, just as it says nothing about anyone’s right to be married.
Ellen Anderson at Bilerico Project discusses some key elements of the decision:
The majority found that the state failed to make its case on both counts. Here's why:
Excluding same-sex couples from "marriage" isn't necessary because letting us marry won't deprive opposite-sex couples of any rights. It also won't change the legal framework of marriage, because same-sex couples who marry will be subject to the same obligations imposed on heterosexual couples.
Retaining "marriage" for straights and giving "domestic partnerships" to gays will "impose appreciate harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."
The widespread disparagement and discrimination gay people have faced makes it likely that excluding them from marriage will be construed as an official view that our relationships are less important than those of opposite-sex couples.
Excluding us from marriage may have the effect of perpetuating the premise that we are second-class citizens who may be treated differently from, and less favorably than, heterosexuals. That is unacceptable.
In other words, letting us marry won't hurt marriage, but preventing us from marrying will hurt us, even if the state gives us all the legal rights of marriage under another name, because the word itself matters.
Scott Lemieux makes a couple of points:
First, claims that the decision that the court "usurped" the legislature should be undermined by the fact that the legislature passed legislation recognizing same-sex marriage, but had the legislation vetoed by the governor, who urged the court to resolve the issue.
Second, you will read claims that the decision will spark a massive backlash; keep in mind that the same people made the same argument about judicial decisions in Massachusetts and New Jersey and were mostly wrong.
Finally, Kevin Drum notes that there will almost certainly be a vote in the issue in the November; hopefully a majority of citizens will not vote to repeal the rights of some California citizens.
Glenn Greenwald has some thoughts, not only on what the decision means and doesn’t mean, but what commenters need to do if they are to maintain any credibility -- a must read. (Two points: I’m only about halfway through the opinion myself right now, so I’m not making any first-hand comments about that. Second, Kathryn Jean Lopez takes the “my stupid is hanging out” award:
Married to Judicial Activism [Kathryn Jean Lopez]
The California supreme court creates a right to same-sex marriage.
Well, no, it didn’t. See my comments above about Antonin Scalia and asking the wrong questions.
In light of Dan Blatt's comments about how to work for change, I found this comment by Pam Spaulding indicative of the reality:
Social change takes time, but it does not mean we have to wait for hearts and minds to change. Given the naked racism we've seen this election cycle, you best believe that anti-miscegenation laws would still be on the books in some states if we were going to wait until everyone was on board with interracial marriage. And that will be the case for same-sex marriage.
We have to lead, not follow; we have to educate allies -- and push the civil rights envelope through legal channels. Both are necessary. It's why it's important to parse the statements of the presidential candidates in reaction to yesterday's ruling -- will they lead, or follow?
Glenn Reynolds, after wondering whether the Court's decision just handed California to McCain, gives us more of the "will of the people mantra", with reference to the post by B. Daniel Blatt that I've already dissected.
And here's Scott Lemieux's comment on Reynolds' question:
Although, admittedly, the massive Republican landslide in the wake of the New Jersey civil union decision in 2006 and their shocking upset victory in Massachusetts in 2004 certainly does give one pause.
One final point:
In the comments to a post by Digby, a commenter noted that, since the decision was founded on the equal protection clause of the California constitution, for the amendment initiative to apply, it would have to invalidate that, which it does not. (Sorry for the lack of backup here – no link or cite was offered in the comment, just that the commenter saw it at “a legal blog.” This may be it, from this post by Marty Lederman.
Break time, chilluns. As a parting note, the comments from Lederman’s post are quasi-interesting – the off-the-wall rants by Bart de Palma at least have comic value.
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